Misconceptions about habeas corpuscommonly understood as the legal right not to be
detained arbitrarily by the governmentabound. A bumper sticker slogan critical of George
W. Bushs detention policy reflects a popular myth: Habeas Corpus, 1215−2006. Contrary
to this view, habeas corpus did not enjoy an unbroken streak from the signing of Magna Carta
until the signing of the Military Commissions Act. Moreover, habeas corpus did not originate
as an individual right against unjust detention, but rather as a courts and a kings prerogative
to challenge another partys detention of someone. Habeas corpus as we know it today is the
product of centuries of power struggles, and it continues to change as the result of pressures
that affect our legal procedures and liberties.

The paradox of habeas corpus is evident in the U.S. Constitution. Article I, Section 9,
Clause 2, reads: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it. Although we usually
think of habeas corpus as a protection of an individual right against arbitrary government
power, the Constitution made it the servant of the federal government, which alone decides
whether an individual is engaging in unlawful rebellion or is justly acting against government
abuses. This is one reason why, during debates over ratification, Anti-Federalists criticized shifting
the authority to suspend habeas corpus from the states to the federal government.

The Supreme Court decisions of the 2000s did not curtail the federal governments detention
powers as significantly as many people believe. In Boumediene v. Bush (2008), one of
the most controversial decisions in its history, the Court ruled that a constitutional habeas corpus
right extended to the U.S. detention camp at Guantánamo Bay and that the 2006 Military
Commissions Act unconstitutionally suspended habeas corpus for alien detainees held there. It
found the procedures established by the president and Congress to be an insufficient substitute
for judicial process, but it left open the door for them to craft alternative detention procedures.

President Obamas first term yielded no real changes to the detention policies established
by his predecessoryet one more example of hypocrisy in the history of habeas corpus. Military commissions, the Guantánamo Bay detention center, indefinite detention, extraordinary
renditioning, and most other manifestations of Bushs detention policy were continued
and in some cases expanded. The Obama administrations other radical policies, such as
detention at Bagram Air Force Base in Afghanistan and its assassination of American citizens,
underscore the limits of habeas corpus in restraining executive power, even when the judiciary
rules against it.

Synopsis

The right not to be arrested and jailed arbitrarily
is widely viewed as central to the Anglo-American legal tradition, a pillar on which our
constitutional rights rest. Leading jurists have
called the protection of this rightvia the legal
device known as a writ of habeas corpusanother Magna Carta and the most effectual
protector of the liberty of the subject that any
legal system has ever devised.

Yet the Great Writ, as habeas corpus is also
known, did not originate as a safeguard against
unjust detention. It came to play that role after
centuries of struggle among English governing
bodies over who possessed the authority to
detain a particular individual. Even today, in
post-9/11 America, habeas corpus proceedings
reflect the prominence of government power
above the principle of liberty.

In The Power of Habeas Corpus in America, Anthony Gregory tells the story of
the writ from medieval England to modern
America, crediting the rocky history to the
writs very nature as a government power.
The book weighs in on habeass historical
controversiesaddressing its origins, the
relationship between king and parliament,
the U.S. Constitutions Suspension Clause,
the writs role in the power struggle between
federal and state government, and the proper
scope of federal habeas for state prisoners and
wartime detainees from the Civil War and
World War II to the War on Terror.

The concluding chapters stress the
importance of liberty and detention policy in
making the writ more than a tool of power.
The book also includes appendices that
examine U.S. Supreme Court decisions made
during World War II and the War on Terror.
Taken as a whole, The Power of Habeas
Corpus in America presents a nuanced and
critical view of the writs history, showing the
dark side of this most revered judicial power.

A History of
Power Struggles

Habeas corpus arose and evolved in
response to struggles between competing
interests. In medieval England, courts had
long been decentralized and did not attempt
to compel obedience. Centralized royal courts
were introduced only after the Norman
Conquest in 1066, and although overlapping
and competing jurisdictions were common,
legal procedures became more uniform. Courts
issued various kinds of writs of habeas corpus
to compel sheriffs, witnesses, and juries; and
writs that scrutinized detentions and liberated
the wrongly detained arose from higher courts
asserting their authority over lower courts.

Parliaments role is widely misunderstood.
Its limiting of royal power to detain was
motivated less by concerns for individual liberty
than by a desire to secure its immunity against
royalty and to augment its own power. On
numerous occasions it dispensed with habeas
corpus protections that obstructed its own
agenda, and it revealed itself to be as much a
menace to freedom as royalty had been.

The American colonists viewed habeas
corpus as one of their common-law rights as
Englishman, but they interpreted this tradition
selectively. Emphasizing its purest pro-liberty
element, they copied portions of Englands
Habeas Corpus Act (1679) and affirmed their
understanding through legal decisions and
legislation, but they ignored the centralizing
role that habeas had played in England.

Once the revolutionary war began, some
champions of habeas discovered that it
interfered with their own priorities. Virginia,
for example, suspended habeas for traitors to
the revolution. After independence was won,
states embraced habeas in their common law,
and some eventually made the writ irrevocable
in their constitutions. The American
understanding of habeas corpus seemed like a
settled matter.

With the adoption of the federal Constitution,
however, the decentralized, revolutionary
conception of habeas corpus met an enormous
and ultimately overwhelming challenge. The
Suspension Clause transferred the ability to
suspend habeas corpus from the states to the
new central government. As Anti-Federalists
had warned during the debates over ratification,
the clause eventually transformed the American version of habeas corpus into something
that resembled the British one, a writ to
be imposed from above.

But even at the state level, habeas corpus
was not a consistent protector of individual
liberty, a fact especially evident in regard to
slavery. State habeas writs were used both
to undercut slavery and to defend it. In the
North, habeas corpus occasionally freed slaves
or blocked their return to the South. In the
South, slave owners used it to bring escaped
slaves back under their control, and slaves
habeas corpus rights were subordinate to the
property rights of their owners.

The Civil War revealed that the federal
government was no more reliable in using the
writ as a tool of freedom than were the states.
The Lincoln administration suspended habeas
corpus, arrested thousands of citizens in the
North and South, subjected civilian detainees
to military commissions, and enforced martial
law. Although the dominant view until
then had been that only Congress, not the
president, possessed the authority to suspend
habeas, Congress raised no objection when
Lincoln affirmed this power as his own and
even passed a law that indemnified him. The
courts proved inadequate to stop the executive
encroachment.

Despite Ex parte Milligan (1864), a
Supreme Court decision that invalidated
military tribunal convictions when civil courts
were feasible, military tribunals continued
well after the war. The Habeas Corpus Act of
1867 gave federal courts habeas review powers
of lower and state casesthe better to protect
blacks from state oppression and enforce
national policy in the South. The moment
that habeas corpus came into conflict with the
priorities of Reconstruction, however, federal
politicians worked to curb federal habeas
review of federal cases.

Reconstruction brought about the full
nationalization of habeas corpus. With its
decision in Tarbles Case (1871), the Supreme
Court stripped the states of their authority to
use habeas against federal detention.

Over the course of the following decades,
law enforcement grew increasingly federalized
and new threats to the liberty of detainees
emerged. Prosecutions under the Chinese
Exclusion Act (1882) were often challenged
on habeas corpus grounds, and courts usually
ruled in favor of the petitioner.

The 112,000 Japanese-Americans interned
in detention camps during World War II
had no such luck, and two Supreme Court
decisions related to this bleak episode in
habeas history are among the cases examined
in detail in the books appendices.

After the war cases were resolved, federal
habeas corpus controversies refocused on the
scope of federal review of state detentions. In
Ex parte Hawk (1944), the Court broadened
federal scrutiny, and Congress codified
this new standard in 1948. Later decisions
expanded the scope of federal review, especially
under the Warren Court and to a lesser degree
under the Burger Court. The Rehnquist
Court, however, oversaw a shift toward a
narrower scope for federal review. Legislation
passed in response to the Oklahoma City
bombing reinforced this trend.

Executive Detention in
Post-9/11 America

The executive branchs response to the
terrorist attacks on the World Trade Center
and the Pentagon renewed interest in habeas
corpus. Among the old issues that gained new
significance were the questions of whether
habeas guarantees apply to all government
detainees, whether national emergencies give
the executive branch special powers, and what
constitutes a valid suspension of the writ.

The post-9/11 hunt for terrorists and
collaborators in the United States quickly
netted more than one thousand people, mostly
immigrants, who were denied due process.
The USA PATRIOT Act, passed in October
2001, authorized the government to detain
suspected terrorists without charge for seven
daysor virtually indefinitely, so long as
every six months it deemed them a national
security threat. Most detainees were released
within one year. The treatment of American
citizens John Walker Lindh, Yaser Hamdi,
and Jose Padilla revealed further limitations of
conventional due process procedures.

Those deemed enemy aliens had
the fewest legal protections. Treatment
included military tribunals without Geneva
Convention protections, the depredations
at Guantánamo Bay and Abu Ghraib, and
enhanced interrogation. Dozens, and perhaps
several thousands, underwent extraordinary
renditioning to countries that practiced
harsher methods of interrogation.

In 2004, 2006, and 2008, the U.S.
Supreme Court issued controversial opinions
that reduced executive detention power. Each
decision, however, contained conciliatory
elements and even guidelines on how to
circumvent meaningful habeas review.

Ultimately, the Court decisions did little to
weaken the authority claimed by the executive
branch. President Obama, having campaigned
in 2008 to close Guantánamo, gutted the
impact of the Courts rulings, both in their
narrow victory for the detainees and in their
broader meaning for detention policy.

Custody and Liberty

The mixed legacy of habeas corpus invites
a reassessment. Scholars have long argued
about what habeas corpus has always meant,
and all sides make valid technical points.
Lost in much of the discourse is the essence of the Great Writ, a meaning whose radical
implications even many of its devotees have
not yet considered.

Habeas has been an imperfect remedy
against tyrannical imprisonment, one badly in
need of a justifying principle. For those who
wish for individual liberty to triumph over the
abuses levied by executive detention and the
modern criminal justice system, the advocacy
of certain concrete reforms is necessary but
hardly sufficient.

A society needs more than the judicial
order to secure its freedom, Gregory writes.
It needs to value that freedom in itself.